Q&A: Federal Judiciary

December 1, 2017

Q: How is the federal judiciary unique from the legislative and executive branches of government?

A: Our nation's founders designed the three branches of the federal government with the premise that they function "of, by and for the people," each authorized with special responsibilities toprevent the others from becoming too powerful.Congress writes the laws of the land; its 535 members are elected by the people and held to account at the ballot box. The executive branch is led by the president, who has the responsibility to "take care that the laws be faithfully executed." The federal judiciary serves as an impartial arbiter of justice to uphold the rule of law that anchors the underpinnings of our republic. It occupies its own space asan independent, co-equal branch of the federal government. Federal judgeships are intended to be immune from political influence. Importantly, a judge's job is not to legislate from the bench, but rather to apply the law. This distinction requires that the federal judiciary issue rulings based on impartial interpretation of the law. Upholding this standard allows judgments to stand the test of time and withstand the political headwinds of the moment. For the government to function "of, by and for the people," our system of checks and balances needs to function effectively and efficiently. As chairman of the Senate Judiciary Committee, I am committed to keeping intact the federal judiciary as the founders envisioned. That means nominees for lifetime appointments to Article III judgeships must exercise impartiality and allegiance to constitutional boundaries establishing limited government. That will help ensure the "blessings of liberty" flourish for generations to come. As the federal government continues its mission creep at the expense of the states and individual rights, America needs an independent judiciaryoperating free from any political agenda now more than ever. From religious liberty to freedom of speech and private property, the federal judiciary is a vital check on the excessive thirst of the federal government to overspend, overregulate and overtax the American people.

Q: How is the pace of confirmations in this Congress measuring up to previous years?

A: Ever since my election to the U.S. Senate in 1980, I have had the privilege to serve on the Senate Judiciary Committee. Here we shape public policy on criminal justice;intellectual property; national security; constitutional rights, including privacy; anti-trust and bankruptcy laws; whistleblower protections and much more. Importantly, the process of "advise and consent" for Article III judgeships, including Supreme Court nominees, falls within the committee's jurisdiction. Whereas the Constitution authorizes the president to make nominations for judicial vacancies, it gives the U.S. Senate the authority to act on these recommendations through "advise and consent." The U.S. Senate confirmed 329 of President Obama's judicial nominees during his presidency, more than was confirmed under his predecessor President George W. Bush. So far in the first year of President Trump's term, the U.S. Senate has confirmed 14 Article III judges, including Associate Justice Neil M. Gorsuch to the U.S. Supreme Court. The federal judiciary currently has 144 vacancies. Over the course of the last two decades or so, the confirmation process has grown increasingly divisive compared to the previous two centuries. Four years ago, theSenate's top Democrat, Harry Reid, deployed a so-called nuclear option to end the filibuster option on lower court nominees, effectively shutting down dissent. At the time, I warned many would regret this power grab. Now with the filibuster off the table, some who supported the nuclear option would like to use the "blue slip" a custom that allows U.S. senators to weigh in on nominees from their home states to block federal judicial nominees before the committee can evaluate their qualifications. Efforts to manipulate this Senate custom to block qualified appellate judicial nominations for circuit courts whose jurisdiction spansseveral states will not work on my watch. At the same time, I am continuing to encourage the White House to collaborate with home state senators both Republicans and Democrats during the nominations process.

The federal judiciary must maintain political neutrality and judicial restraint to uphold the institutional integrity of the third branch.The last thing the American people want is political grandstanding in the courtroom. We have enough of that in the public square. Confirming principled, impartial nominees will help restore the public trust and strengthen the credibility and independence of the federal judiciary for generations to come.